DOJ Still Demanding Identity Of Twitter Users Because Someone They Shouldn't Have Arrested Tweeted A Smiley Emoji

from the this-case-remains-fucked-up dept

Last month, I had two blog posts about a particularly insane lawsuit being pushed by the Justice Department against a computer security researcher, Justin Shafer. As we explained, the arrest and prosecution of Shafer appeared to be the result of a truly ridiculous vendetta against Shafer by the FBI because Shafer got angry over a previous (and totally misguided) decision to raid his home, after he properly disclosed security problems involving some dental practice software. It seems clear that Shafer never should have been arrested (and never should have had the FBI raid his house three times over just a few months). Of course, what first brought the case to my attention was an even more ridiculous part of the story, in which the DOJ had sent a subpoena to Twitter demanding basically all info on five Twitter users -- even though two of them don't hide their identity -- because Shafer tweeted a smiley emoji at them.

That story is even more insane than it sounds, but I'm not going to repeat the details here -- I'll just repeat: the case involved the DOJ demanding the identity (and more) of five Twitter users because someone else (who they're railroading over bogus charges) sent a smiley emoji to them on Twitter where they were discussing a different lawsuit altogether.

We now have two updates on that story: (1) Shafer is appealing the fact that he's still in jail, months later and (2) the DOJ has refused to withdraw the emoji subpoena. Yes. You read that right. The DOJ is doubling down, demanding the identity (and more) of Twitter users because someone they never should have arrested, sent a smiley emoji to them. We can cover that second point first because there's not much more to say beyond "What the fuck is wrong with the DOJ?" As you may recall, the five Twitter users whose info was sought by the subpoena included @dawg8u ("Mike Honcho"), @abtnatural ("Virgil"), @Popehat (Ken White), @associatesmind (Keith Lee) and @PogoWasRight (Dissent Doe). Ken White and Keith Lee are both known (and each has blogged about the situation). The rest are at least partially pseudonymous. Dissent Doe, for one, has strong reasons for retaining anonymity, given her focus on data breaches and privacy issues. She revealed the DOJ's stunning decision to keep going over the weekend, noting that she now needs to fight the subpoena in court.

Dissent Doe explained to me later that her lawyers have tried, repeatedly, to contact the DOJ about this ridiculous subpoena, and the DOJ has ignored all attempts to communicate. Twitter has told her that any motion to quash the subpoena needs to be filed this week. She also notes, appropriately, that she's "really really ticked off" about all of this. We all should be.

And, just to be clear, there is no way the subpoena is even remotely Constitutional. Not even armchair lawyers could possibly think so. Over and over again, courts have said that anonymity is protected under the First Amendment, and you need to have very strong reasons to pierce the anonymity. The key case here is McIntyre v. Ohio Elections Commission, but plenty of others have weighed in since then. As we pointed out, the recent Awtry v. Glassdoor case nicely summarizes the history of cases protecting anonymity under the First Amendment:

The Supreme Court has recognized that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995). Indeed, “[t]he right to speak anonymously was of fundamental importance to the establishment of our Constitution.” Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088, 1092 (W.D. Wash. 2001) (citing McIntyre, 514 U.S. at 341-42). In particular, “Justice Black . . . reminded us that even the arguments favoring the ratification of the Constitution advanced in the Federalist Papers were published under fictitious names.” McIntyre, 514 U.S. at 342 (citing Talley v. California, 362 U.S. 60, 64 (1960)). So too were the responses of the anti-federalists, which were published by authors who used such fictitious names as “Centinel,” “Brutus” and “The Federal Farmer.” In re Anonymous Online Speakers, 661 F.3d 1168, 1172-73 (9th Cir. 2011).

Further, it is well-established that anonymous speech on the Internet, like other types of anonymous speech, enjoys First Amendment protection. In re Anonymous Online Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011)(“online speech stands on the same footing as other speech—there is `no basis for qualifying the level of First Amendment scrutiny that should be applied’ to online speech”) (quoting Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997)). As the Ninth Circuit has explained, “the ability to speak anonymously on the Internet promotes the robust exchange of ideas and allows individuals to express themselves freely without `fear of economic or official retaliation . . . [or] concern about social ostracism.'” Id.(quoting McIntyre, 514 U.S. at 341-42).

First Amendment protection of anonymous speech “is not unlimited, however, and the degree of scrutiny varies depending on the circumstances and the type of speech at issue.” Id. Political speech is considered to be “core” speech and is afforded the highest level of First Amendment protection. McIntyre, 514 U.S. at 346. Online messages such as the ones at issue here are also entitled to some level of First Amendment protection, even if the hurdle for overcoming that protection is less stringent than it is for political speech. See In re Anonymous Online Speakers, 661 F.3d 1168 at 1177; see also Highfields Capital Mgmt., L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2005) (finding that identity of individual who anonymously posted derogatory comments about a company on an online message board was protected from disclosure under the First Amendment); Art of Living Foundation v. Does 1-10, No. 10-cv-5022 LHK, 2011 WL 5444622, at *5 (N.D. Cal. Nov. 9, 2011) (finding the standard articulated in Highfields applied to anonymously posted online commentary criticizing the plaintiff’s organization).

Given that tons of people are pointing this out publicly, what possible reason could the DOJ have for continuing to push Twitter to cough up this info other than to just be assholes?

As for the second update: Shafer has appealed the decision of a magistrate just revoking his pretrial release. The filing, by lawyers Tor Ekeland and Frederic Jennings, is... quite a read (and even cites my articles). It certainly doesn't hold back:

The government accuses Justin Mark Shafer of putting an FBI agent and his wife in substantial emotional distress and publishing restricted information about that FBI agent with the intent to incite violence against him. But nowhere in the record, or in the discovery in this case, is there any true threat of violence against anyone. There is no explicit language articulating any kind of threat. The “restricted” information in question was a prior home address for the FBI agent, publicly available on the internet. This entire case is built on innuendo and speculation that withstands neither constitutional nor statutory scrutiny. It is a chilling example of federal law enforcement overreach, and has serious ramifications for constitutional free speech and due process in relation to the internet and computer law. If the government’s accusations in this case are a crime, then millions of social media using Americans are subject to the prosecutorial whim of the Department of Justice.

The factual bases of the government’s bare bones indictment are a handful of public tweets; a Facebook friend request and message sent to a public Facebook account; the following of a public Twitter account;1 and two emails to an FBI Agent – one with a 😊 emoji and another inquiring about the status of a report of a patient privacy violation. The Defendant made no attempt to mask his identity, and the FBI never contacted the Defendant to express any concern or to ask him to stop his communications. Instead they arrested him. And any claim that he engaged in a sustained course of conduct with a continuity of purpose to cyberstalk or threaten are ludicrous when compared to facts embodied in the case law regarding these statutes.

These accusations led to a pretrial release order so broad it functioned as a prior restraint on Mr. Shafer’s constitutional right to speak about the accusations made against him. When he sought to do so – through a post on his work-related blog – the magistrate judge revoked release, broadly interpreting the release condition terms and finding a violation of those conditions.

An innocent man—who the government has not charged, and cannot charge, with any violent crime, nor with any history of violent crime— is now in jail on the basis of protected speech.

I recommend people read the entire document, as it goes into great detail (even beyond my original posts) about the vindictive nature of the FBI's vendetta against Shafer -- not for doing anything wrong, mind you -- but for being upset that the FBI raided his house and took all his electronics twice for completely bogus reasons. And it's not just Shafer, but Shafers three kids who are now traumatized over the mutliple FBI raids, in which agents pointed weapons at the children, or denied their parents the ability to get the children out of their rooms for extended periods of time.

The children now suffer currently from trauma and substantial emotional distress as a result of the repeated armed FBI raids. The Shafers’ three-year old is now unable to sleep alone in her room. Their (now) six-year old is struggling and withdrawn in school, where he previously excelled. Their ten-year old is now afraid to be near open shades, for fear of being surveilled.... Their father has not come home since April 18, 2017, because he is in jail awaiting trial.

As for why Shafer has been in jail all this time? Apparently it's because he wrote a blog post about the case. You can read that blog post here. I wouldn't necessarily say that the blog post was a good idea, because he's clearly venting his anger about the arrest and the treatment by the FBI and Special Agent Nathan Hopp in particular. But it hardly meets the criteria of threatening Hopp or "contacting" him via social media. And yet, since Shafer was barred from either of those things as condition for pretrial release, he was brought back in and has been in jail ever since. That raises a whole new set of First Amendment questions. Shafer is in jail for blogging.

During the period of Mr. Shafer’s pretrial release, he committed no crimes. He used no illegal or prohibited substances. He neither fled nor attempted to flee. He did nothing that posed a threat to the safety of any person or the community. He simply wrote a blog post comprised of constitutionally protected speech criticizing his prosecution. (See Ex. C, April 14, 2017 Blog Post) For this he has been taken away from his wife and children.

Shortly after the blog post was published, Mr. Shafer received a notice of potential violation of his pretrial conditions of release.

On April 18, 2017, a revocation hearing was held before Magistrate Judge Toliver. The government referenced vague concerns regarding flight risk, and claimed that the blog post Mr. Shafer had written was evidence of danger to the community or violation of the no-contact order between Mr. Shafer and SA Hopp. The government argued at the revocation hearing that merely “criticizing” SA Hopp in the “blog site” [sic] was indirect contact. (Tr. 5:8-6:10 (Apr. 18, 2017).) At the close of the revocation hearing, Magistrate Judge Toliver revoked Mr. Shafer’s pretrial release order. He has been detained since.

More specifically, Shafer's lawyers point out:

The original terms of his supervised release violated his free speech rights under the First Amendment. Imprisoning him pre-trial based on his speech is unconstitutional. This current, unconstitutional incarceration before an adjudication by a jury of his peers hampers Mr. Shafer’s ability to put on an effective defense, as he is not free to diligently prepare for his defense with his attorneys due to constant monitoring and harassment in jail. This violates his Fifth Amendment Due Process rights and his Sixth Amendment right to mount an effective defense. Moreover, none of Congress’s narrowly prescribed exceptions to an innocent defendant's presumption of liberty apply here. Mr. Shafer should be released pre-trial under appropriate conditions because his current incarceration violates the Constitution and federal law.

Everything about this case is crazy. We've certainly seen overreach by the DOJ in the past, but this case seems like a pretty blatant example not just of overreach, and not just of the DOJ doing whatever the fuck it wants, but of it doubling down to violate the rights of people just because it doesn't like being called out about it.


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  • identicon
    Anonymous Coward, 13 Nov 2017 @ 9:45am

    Chilling Affect
    or
    Chilling Effect
    ?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Nov 2017 @ 9:45am

    @PeterThiel @CharlesHarder @ShivaAyyadurai @PrendaLaw @BobMurray @DenuvoDRM

    :)

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 13 Nov 2017 @ 9:48am

    "Nice life and family you've got there, be a shame if something were to happen to them..."

    Given that tons of people are pointing this out publicly, what possible reason could the DOJ have for continuing to push Twitter to cough up this info other than to just be assholes?

    Oh that's easy: Making examples of those involved.

    If you complain about the DOJ/FBI they will destroy you. They will throw you in jail, they will silence you, they will conduct armed raids on your house. Happen to have children in the house? Oh don't think they are getting off lightly either, and if you have the audacity to complain about the treatment you receive they will happily show you that as bad as it as been up until now it can always get worse.

    If you happen to talk to or be in communications with someone they don't like, they will drag you through the mud too, so be careful who you associate with.

    Sure the DOJ comes out of this looking like petty, vindictive thugs, but I have little doubt at this point that that's if not the main goal at least a major motivation(because honestly, does anyone believe the DOJ thinks they're going to get valuable information from the other twitter users?), as it stands to make other people in the future less likely to question them or stand up to them, even in such a minor way talking about how they're being treated.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 Nov 2017 @ 10:15am

      Re: "Nice life and family you've got there, be a shame if something were to happen to them..."

      He's lucky he didn't have any pets around for the FBI to murder on a whim. Although frankly, I'm surprised the FBI managed to get through multiple raids without leveling the house too, in the name of Officer Safety, of course.

      reply to this | link to this | view in chronology ]

      • icon
        Bergman (profile), 14 Nov 2017 @ 9:06am

        Re: Re: "Nice life and family you've got there, be a shame if something were to happen to them..."

        I'll make a prediction of future absurdity here -- sooner or later government agents will buy a puppy for someone they have a vendetta against, just so they can have a family dog to shoot for no reason, when the victim didn't actually have one to shoot.

        Given the nature of such predictions, while it's completely ludicrous now, I expect to see a news headline about it happening sometime around 2037.

        reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 13 Nov 2017 @ 10:20am

    WHY NOT..

    Why not just look at his account and see WHO is linked to him???
    If they have access to his account, its a long list..

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Nov 2017 @ 10:28am

    Someone should've thought of the children...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Nov 2017 @ 10:44am

    Foolish
    Boneheaded
    Incompetence

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 13 Nov 2017 @ 10:48am

      Re:

      Pretty sure incompetence would have been an improvement over the current situation, and when you can say that regarding a major government agency's actions you know things are screwed up.

      reply to this | link to this | view in chronology ]

  • icon
    wshuff (profile), 13 Nov 2017 @ 12:07pm

    How can this be a surprise when our DOJ prosecuted a person for laughing?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Nov 2017 @ 12:24pm

    Saving on training

    Nice to see that the DOJ is saving their budget by using training materials left over from the Khmer Rouge.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Nov 2017 @ 12:53pm

    "Given that tons of people are pointing this out publicly, what possible reason could the DOJ have for continuing to push Twitter to cough up this info other than to just be assholes?"

    Why? Because they are never held accountable for abusing their positions.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 14 Nov 2017 @ 5:32am

      Re:

      Because the DOJ are on secret quota's?

      Where a bonus of $550 dollars is paid for every subpoena issued? and $750 if the subpoena causes the victim undue financial distress? $2400 if the victim tries to commit suicide and $4400 if he succeeds...$6000 if he's black.

      But of course I'm just speculating...

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 13 Nov 2017 @ 4:12pm

    Thank the FSM we don't live in a country where petty people with power are enabled by a rubber stamp judiciary who refuse to admit citizens actually have the rights we pay lip service to.

    I mean imagine, wasting tons of cash on 1 assholes vendetta against a guy who tried to help them. Perhaps maybe the fact someone handed them the evidence they needed was enough to make them angry that they couldn't claim it was solely from their hard work.

    Raiding a man's house and terrorizing his family with weapons, well toddlers have killed more people that terrorists in the US, so I guess that makes sense.

    Someone get Trump a fiddle, I've seen enough empires fall to know its about time the emperor start fiddling.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 Nov 2017 @ 9:19pm

    God help the first person who tweets Bender's "Oh wait, you're serious. Let me laugh harder" at the FBI/DOJ about this subpoena...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 14 Nov 2017 @ 5:30am

    Imagine if he'd tweeted the eggplant emoji..the DOJ would have sent armed officers to execute the guys wife, his children and his dog in front of him.

    reply to this | link to this | view in chronology ]

  • icon
    Indee One (profile), 14 Nov 2017 @ 7:29am

    DOJ Doubling Down on Smiley Face Tweet Subpoena

    Why would they need the 5 users names and information for this case? Its so weird and absurd.

    Why do they need to know her identity?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous, 14 Nov 2017 @ 7:58am

    DOJ subpoena Twitter

    Unfortunately, Dissent Doe has already been the victim of her identity being unmasked online by a vindictive media psychologist.
    However, I do believe that if she was able to survive that crazy drama and person, she is able to survive this.

    reply to this | link to this | view in chronology ]

  • icon
    teknosapien (profile), 14 Nov 2017 @ 8:13am

    I often wonder if

    These arrests and harassment of security researchers is a case of them uncovering a government exploit that is used to spy on the US Citizens

    reply to this | link to this | view in chronology ]

    • identicon
      Indee One, 14 Nov 2017 @ 8:58am

      Re: I often wonder if

      Yes! And it needs to stop! Enough of this shit to harass people who are trying to do what is right for the constituents in this country.

      Maybe we can do a mass protest against the DOJ or something. I dont know. I am putting ideas out there. It has got to stop. Or send a bunch of :) tweets to the DOJ and to Justin Shafter's twitter account. (my snarkiness is showing)

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 15 Nov 2017 @ 8:39pm

      43 comments going back to 9 Jul 2009???

      This "teknosapien" has only 43 comments going back to 9 Jul 2009 with a FIFTY-FOUR month gap from 2010!

      UNBELIEVABLE accounts just keep crawling out. It's Tech Of The Dead.

      Looky here! A 12 year-old account: AnonJr!
      https://www.techdirt.com/user/anonjr

      All of 30 comments since 21 Dec 2007; 3 year gap after first, then 4 year gap to 2015! Though more recently!

      Still doesn't prove ODD? Check out this one fairly active recently, but has two gaps each about 18 months, and only 19 comments in 8 years!:
      https://www.techdirt.com/user/jdrwho

      reply to this | link to this | view in chronology ]


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